By means of aforesaid writ petitions, the petitioners seek following reliefs, among others:
(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 17.11.2016, passed by Civil Judge (J.D.), Vikasnagar, in O.S. no.
83 of 2014, Kasturi Devi vs Kunwar Singh and another, whereby the application paper no. 6C2 filed by the plaintiff / respondent herein has been allowed and the temporary injunction application filed by the defendants / petitioners, paper no. 15C2, has been dismissed.
(ii) issue a further writ, order or direction in the nature of certiorari quashing the orders dated 10.07.2017, passed by Addl. District Judge, Vikasnagar, Dehradun in misc. civil appeal no. 2 of 2017 and misc. civil appeal no. 27 of 2016.
(iii) to dismiss the application paper no. 6C filed by the plaintiff and to allow the application paper no. 15C filed by the petitioners / defendants.
2) Plaintiff-respondent has filed a civil suit against the defendants-petitioners in the court of Civil Judge (Jr. Div.), Vikasnagar, Dehradun, for a relief of permanent prohibitory injunction restraining the defendants from interfering in suit property which has been detailed and specified at the foot of the plaint.
3) An application under Order 39 Rules 1&2 CPC was also filed along with the same. The trial court, vide order dated 17.11.2016, allowed application under Order 39 Rules 1&2 CPC (application paper no. 6C) and restrained the defendants from interfering in the suit property. Aggrieved against the same, the defendants-petitioners preferred misc. civil appeals before learned Addl. District Judge, Vikasnagar, Dehradun. Learned lower appellate court partly allowed misc. civil appeal 02 of 2017. Respondent Kasturi Devi was restrained from interfering in the possession of the plaintiffs over khasra no. 659, khasra no. 660 and khasra no. 672D. Misc. civil appeal no. 27 of 2016 of the appellants-petitioners in relation to khasra no. 658 was dismissed, hence, aforesaid writ petitions.
4) There is no denying the fact that the petitioners are not the recorded tenure holders of khasra no. 658. They are already granted relief in respect of other khasras. Revenue suit of the petitioners under Section 229B of U.P.Z.A. & L.R. Act is already pending before the revenue court. It is also admitted position that revenue court, who is seized with the dispute under Section 229B of U.P.Z.A. & L.R. Act, can pass an injunction order.
5) Section 229D of U.P.Z.A. & L.R. Act reads as under: 229D. Provision for injunction. (1) If in the course of a suit under the provisions of Section 229B and 229C, it is provided by an affidavit or otherwise- (a) that any property, trees or crops standing on the land in dispute is in danger of being wasted, damaged or alienated by any party to the suit; or (b) that any party to the suit threatens or intends to remove or dispose of the said property, trees or crops in order to defeat the ends of justice, the Court may grant a temporary injunction and where necessary, also appoint a receiver. (2) Nothing in sub-section (1) shall apply to a suit filed under sub-section (4D) of Section 122B.
6) It is not necessary for this Court to go into the minutest details of these writ petitions. In a nutshell, the petitioners have not been granted relief in respect of khasra no. 658 only, which is not recorded in their name. There is, therefore, no question of interference in the findings arrived at by the learned lower appellate court, who has dealt with the matter appropriately, giving cogent reasons in support of findings arrived at by it. The petitioners have no prima facie case in respect of khasra no. 658, because they are not recorded tenure holders. They are recorded tenure holders of the rest of the khasras and, therefore, learned lower appellate court has rightly granted them relief in respect of other khasras.
7) The next question arises - what recourse is left open to the petitioners? They have already filed a suit under Section 229B of U.P.Z.A. & L.R. Act. On an application being filed / or to be filed on behalf of the petitioners, the revenue court has jurisdiction to grant injunction in respect of landed property, if a suit under Section 229B of U.P.Z.A. & L.R. Act is pending adjudication before it.
8) The petitioners may, therefore, take recourse to appropriate remedy before appropriate forum, in accordance with law.
9) Since the basis of learned lower appellate courts order is that the petitioners are not recorded tenure holders, therefore, in the humble opinion of this Court, the dismissal of their appeals in relation to khasra no. 658 should not come in the way of revenue court, seized with the matter, under Section 229B of the U.P.Z.A. & L.R. Act to take notice of application under Section 229D of the U.P.Z.A. & L.R. Act and pass an appropriate order, in accordance with law, untrammeled by any of the findings recorded by the courts below. 10) Both the writ petitions thus stand disposed (U.C. Dhyani, J.) Dt. July 28, 2017 Negi
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